Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

February 06, 2006

Protecting Library Patrons is Not the Same as Protecting Terrorists

Susan Nevelow Mart: Today's Boston Globe ran a story called When Librarians Protect Terrorists. The author, Richard L. Cravatts, believes that no one, and particularly no librarian, has the right (or the training) to deny a law enforcement request for patron computer terminal records, even when law enforcement has only made a verbal request. For a discussion of the kinds of legal process that are available to require a library to turn over records, see Mary Minow's article Library Records Post-Patriot Act. But according to Cravatts. when the law shows up, you have no option but to turn over anything a law enforcement officer asks for. In support, he quotes Heather Mac Donald:

Like it or not, once you've disclosed information to someone else, the Constitution no longer protects it. This diffuse-it-and-lose-it rule applies to library borrowing and Web surfing as well, however much librarians may claim otherwise.

Merely "disclosing," however, is not enough to lose one's 4th Amendment rights. Flawed as it is in the modern day, the Supreme Court's Smith v. Maryland is still the law: that was the case that held that the police can't listen to the content of a phone call, where John is disclosing something to Mary, without a warrant, because, among other things, of the speaker's expectation of privacy. Similarly, the police can't "listen" to the computer traffic of everyone on a public computer, just because they want to. Unless there are exigent circumstances, the police need a warrant. Even the FBI in this case thought so, as they waited for one. Mr. Cravatts is incensed because the library director insisted on enforcing the rights of her patrons.

The police and FBI sought the computer because they had received a "credible" bomb threat at Brandeis University, and had traced the threat to a public computer at the local public library. There is no information in the article about what the library director was told, or how the officers acted, what direct observation evidence the librarians could have given, or, for that matter, why it took ten hours (a very long time) to get a warrant.

There is a distinction between investigating a crime in progress and a crime that has already been committed, and if there were exigent circumstances the police could have acted without a warrant. In this case. they were clearly not willing to bet that the circumstances allowed them to perform a warrantless search and seizure.

I suspect there is more to this story than has currently been reported.

I think you will agree with me that Kravatts has no idea what he is talking about. His citation of Mac Donald is ripped out of context and is not even relevant to the events he is discussing, since the Patriot Act -- which was the subject of Mac Donald's essay -- was never involved.

Mac Donald's point is not Kravatts' by a long shot, and in lumping the two together as you've essentially done, you are only presenting his ignorance as factual.

Morgan, I agree. The point I stress to librarians when I do training is that it's NOT the law enforcement officers who decide when confidential records should be turned over. It's NOT the librarians who decide. It's the court...an impartial judge.

We want law enforcement to be zealous - when there's a victim, we want them to do everything they can to help. That's exactly why we need judges, to balance the competing interests of, say, privacy of innocent library patrons. When the balance tips in favor of disclosure, the judge will sign a search warrant. When the balance tips in favor of patron confidentiality, the judge will not.

I am glad that you are addressing his legal arguments. I can't get past the fact that he wrote "More to the point, why are librarians, whose professional training concentrates on mastering the use of the Dewey Decimal System, making any decisions that affect law enforcement?". Not only is he woefully ignorant about what librarians actually do, his arguments are based on flawed legal reasoning.